Recent Articles

D. Colo. Notes Split Re Whether FRCP 9(b) Applies to Negligent Misrepresentation Claims

A. Benjamin Spencer
March 13, 2012 09:18

Per Denver Health and Hosp. Authority v. Beverage Distributors Co., LLC --- F.Supp.2d ----, 2012 WL 400320 (D.Colo. Feb. 8, 2012):Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation claim and that the claim cannot meet Rule...

First Circuit Notes Split Re Excludability of Plea Negotiations Time Period under Speedy Trial Act

A. Benjamin Spencer
January 03, 2012 15:00

Per U.S. v. Huete-Sandoval, --- F.3d ----, 2011 WL 6823186 (1st Cir. Dec. 29, 2011):[W]e conclude that the sixteen days between July 22 and August 7, 2009, were not excludable pursuant to the STA and in light of prior circuit precedent.FN8FN8. We note that other circuits are divided as to whether...

Fifth Circuit Notes Split Re Propriety of Internet Restrictions During Probation for Sex Crime Convicts

A. Benjamin Spencer
December 14, 2011 16:12

Per U.S. v. Miller, --- F.3d ----, 2011 WL 6160220 (5th Cir.Dec. 13, 2011):[W]e acknowledge that there is some tension among various courts of appeals' opinions regarding the reasonableness of restrictions on computer use and Internet access [for sex crime convicts].FN63FN63. See United States v....

Judge Moore (Fed. Cir.) Notes Need to Clarify Claim Construction Principles

A. Benjamin Spencer
November 27, 2011 15:32

Check out this dissent from a denial of a petition for rehearing en banc in Retractable Technologies, Inc. v. Becton, Dickinson and Co. 659 F.3d 1369(Fed. Cir. Oct. 31, 2011), in which Judge Moore stresses the need for more clarity in the claim construction area:Claim construction is the single...

Fith Circuit Weighs in on Split Re Stay Pending Arbitrability Appeal

A. Benjamin Spencer
November 03, 2011 14:33

Per Weingarten Realty Investors v. Miller, --- F.3d ----, 2011 WL 5142183(5th Cir. Nov. 1, 2011):   Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth...

Third Circuit Joins Majority on Time for Removal

A. Benjamin Spencer
October 19, 2011 13:55

From BNA's U.S. Law Week, Oct. 17, 20100:The 30-day period under 28 U.S.C. § 1446(b) for filing of the notice of removal of a civil action begins to run separately for each defendant after service upon them of the initial pleading setting forth the claim, the U.S. Court of Appeals for the Third...

First Circuit Weighs in on Split Re Meaning of "Warrant" in 18 U.S.C. sections 3606 & 3583(i)

A. Benjamin Spencer
September 30, 2011 15:06

PerU.S. v. Collazo-Castro, --- F.3d ----, 2011 WL 4495851 (1st Cir. Sept. 29, 2011):The central dispute is whether the district court had relation-back jurisdiction under the Delayed Revocation Statute, which provides: The power of the court to revoke a term of supervised release for violation...

Ninth Circuit Notes Intracircuit Split Re Compatability of Rule 23 Class Actions and Collective Actions under FLSA

A. Benjamin Spencer
August 10, 2011 13:11

Per Pitts v. Terrible Herbst, Inc. --- F.3d ----, 2011 WL 3449473 (9th Cir. Aug. 9, 2011): Aside from dismissing Pitts's entire action for lack of subject matter jurisdiction, the district court alternatively dismissed Count 2 of the complaint because, in its view, a Rule 23 class action could...

Fifth Circuit Declines to Weigh in on Split Re Authority to Issue Injunction Pending Arbitration

A. Benjamin Spencer
July 25, 2011 18:18

Per Janvey v. Alguire --- F.3d ----, 2011 WL 2937949 (5th Cir. July 22, 2011): The circuit split concerns the power of a district court to issue an injunction while arbitration is pending. The Fifth Circuit acknowledged the circuit split in RGI, Inc. v. Tucker & Associates, Inc., 858...

U.S. Law Week Reports Circuit Splits

A. Benjamin Spencer
July 12, 2011 15:09

Here are the circuit splits reported recently in BNA's U.S. Law Week, 80 U.S.L.W. 22(June 2011):Bankruptcy—Farm Debtors: United States v. Dawes (In re Dawes)? (79 U.S.L.W. 2786)Are income taxes flowing from the sale of a farm asset during Chapter 12 bankruptcy proceedings taxes “incurred by the...